Five LGBT Rights Lawsuits That Have Changed Our Nation

Engaging and largely untold-how five pivotal lawsuits have altered LGBT history

Part of the Queer Ideas series a unique series addressing pivotal issues within the LGBT movement

The advancement of LGBT rights has occurred through struggles large and small-on the streets, around kitchen tables, and on the Web. Lawsuits have also played a vital role in propelling the movement forward, and behind every case is a human story: a landlord in New York seeks to evict a gay man from his home after his partner of ten years dies of AIDS; school officials in Wisconsin look the other way as a gay teenager is repeatedly and viciously harassed by other students; a lesbian couple appears unexpectedly at a clerk’s office in Hawaii seeking a marriage license.

Engaging and largely untold, From the Closet to the Courtroom explores how five pivotal lawsuits have altered LGBT history. Beginning each case narrative at the center-with the litigants and their lawyers-law professor Carlos Ball follows the stories behind each crucial lawsuit. He traces the parties from their communities to the courtroom, while deftly weaving in rich sociohistorical context and analyzing the lasting legal and political impact of each judicial outcome.

Over the last twenty years, no group of attorneys has helped to transform this country more than LGBT rights lawyers, and surprisingly, their collective accomplishments have received relatively little attention. Ball remedies that by exploring how a band of largely unheralded civil rights lawyers have attained remarkable legal victories through skill, creativity, and perseverance.

In this richly layered and multifaceted account, Ball vividly documents how these judicial victories have significantly altered LGBT lives today in ways that were unimaginable only a generation ago.

“We owe Carlos Ball a debt for his uniquely illuminating account of gay rights litigation. He is a balladeer of the hitherto unsung heroes who litigated the major gay rights cases as well as a legal expert who is instinctively alert to law’s reasons and contingencies. Perhaps only Ball could have given us a book on this topic that so delights and instructs.—Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law

“A prolific author and eminent legal scholar, Carlos Ball deftly and accessibly tells the rich and fascinating stories about the clients and lawyers whose cases have transformed LGBT life in the United States. Timely and deeply relevant, From the Closet to the Courtroom is a powerful testament to the role our lawyers and courts can play in creating social change.” —Nancy D. Polikoff, Professor of Law, Washington College of Law, and author of Beyond (Straight and Gay) Marriage

“A timely chronicle of how key legal battles reflect and raise the visibility of sexual minorities and compel society to take seriously their claims to equal citizenship. By revealing the people and stories behind some of the most far-reaching court cases in the history of the LGBT rights struggle, it brings alive the impact of litigation.” —Nathaniel Frank, senior research fellow at the Palm Center, University of California-Santa Barbara, and author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America

“This powerful book is a long-overdue tribute to the lawyers and activists whose work has changed many lives and resulted in landmark legal victories. Professor Ball dramatically resurrects each case, bringing together opposing attorneys and litigants to show how ordinary human conflict can translate to extraordinary civil rights gain. This groundbreaking book is crucial if we are to understand the history of the rights we take for granted, achieved by those who accomplished much, and against such tremendous odds.” —Mary Bonauto, Civil Rights Project director for GLAD, Gay & Lesbian Advocates & Defenders

Reviews

Review:The Gay & Lesbian Review - May 1, 2011

From the Closet to the Courtroom deftly interweaves personal histories with accessible explanations of legal terminology…Carlos Ball’s careful account is valuable not only for its legal lessons but for its human stories.

Review:Choice Magazine - December 1, 2010

“While the gay and lesbian rights movement had its start in 1969 at the Stonewall in New York City, it has yet to have a book tell the story of its poster children and the legal struggles in which they fought. This volume amply fills this void...Well written, exciting, and fun to read. Excellent for collections on the law, gay and lesbian studies, and social change in the US…Highly recommended.”

Review by: Tracy Nectoux,Smile Politely - November 12, 2010

“From the Closet to the Courtroom is unhesitatingly recommended for anyone, gay or straight, who is interested in civil rights movements in this country. It is also recommended for law students planning to practice civil rights law. Finally, it is recommended for all LGBTQ people…We must learn our history, for that will ensure a more equal and safe future.”

Review:Colorado Accident Lawyer blog - November 1, 2010

“This is one of the most relevant books ever to our community…This book should become a basic text for college LGBT studies courses and is also valuable to students of LGBT law.”

Review:Anderson Library blog - November 1, 2010

“Instead of a regurgitation of the court decisions, the author explores the back stories of the cases, providing a human connection to the parties named in the lawsuits.”

Review:Find Law.com - October 5, 2010

“Unsurprisingly, Nabozny attempted suicide, multiple times, until his family moved to a different city. Years later, he sued the school district, contending that the school had violated his rights to equal protection on the basis of his gender and sexual orientation. More details on the case can be found in Carlos Ball's excellent book From the Closet to the Courtroom. Ball reports, for instance, that Nabozny's first lawyer wanted him to downplay the "gay" element to his bullying -- presenting his case as a harassment case, not an anti-gay harassment case in particular.”

Review:Library Journal - August 1, 2010

“This will be of particular interest as the California gay marriage case wends its way through the courts and “don’t ask, don’t tell” features prominently in the news.”

Review:Time Out New York - July 6, 2010

“In From the Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed Our Nation writer Carlos A. Ball revels in a handful of important legal victories, while also delving deeply into the personal stories of each case, resulting in a richly textured account that is part history book, part colorful reportage.”

Review:Book Marks - July 5, 2010

“…this riveting book’s focus is on the parallel track of courtroom battles. The author blends lucid legal analysis, poignant portraits of the defendants and astute profiles of the attorneys involved in five cases.”

Review:California Lawyer - July 1, 2010

“Carlos A. Ball is a law professor who understands the human dimensions of gay rights impact litigation, and he writes with the eyes and ears of a journalist—at times even a novelist—as much as with the mind of a legal scholar…he offers lawyers an enlightening shift of focus, enabling us to understand who "makes law" in this country, and what motivates them to do so.”

Review:Lesbian/Gay Law Notes - June 1, 2010

"This should become a basic text for college LGBT studies courses and can be read with profit by all students of LGBT law, but it is also aimed at a more general audience and is recommendable to non-specialists as well."

Review:Publishers Weekly - March 22, 2010

"Ball approaches his subject with vigor and sensitivity and makes a poignant plea for justice."

From the Introduction

The LGBT rights movement has had many heroes, some who have received a great deal of national attention, and others whose names we will never know. Indeed, the advancement of LGBT rights has come about through struggles large and small--on the streets, around kitchen tables, in newspapers and on the Internet, and in courtrooms across the country. The list of individuals who have participated is long, and it includes the drag queens who congregated at the Stonewall Inn and who decided in 1969 to push back against police harassment and intimidation; the gay rights activists who in 1978 defeated a California ballot measure that would have led to the firing of gay public school teachers throughout the state; the thousands of volunteers who in the 1980s helped to care for, and fought on behalf of, people with AIDS; and the many who came together to mourn and celebrate the life of Matthew Shepard, who in 1998 was brutally beaten to death in Laramie, Wyoming, for being gay.

One important piece of the struggle for LGBT rights has involved lawsuits. This book tells the story of five lawsuits that have worked in conjunction with political mobilization and social protests to remake our nation’s political, social, and moral landscape. In many ways, overcoming invisibility is the first step in successfully demanding basic civil rights. In fact, it is perhaps no coincidence that Invisible Man, Ralph Ellison’s novel about the pain and misery associated with the invisibility of black people in America, was published only two years before the Supreme Court issued its opinion in Brown v. Board of Education. Brown compelled our country to recognize the capabilities and hopes of African Americans. Black people after Brown may still have been hated by some and feared by others, but they were no longer invisible. After Brown, it was no longer tenable to reject out of hand the claims of African Americans to basic equality. Similarly, the five lawsuits explored in this book have required our nation to take seriously the claims of LGBT people to equal citizenship. The primary goal of laws and policies that discriminate on the basis of sexual orientation is to discourage LGBT individuals from being open about who they are and whom they love. In contrast, the five lawsuits chronicled here have helped to make LGBT people visible by forcing society to grapple with both their existence and their aspirations.

In Braschi v. Stahl Associates (1989), an American appellate court for the first time concluded that it is possible for two men in an intimate relationship to constitute a family. Prior to Braschi, same-sex relationships, no matter how close or long-lasting, had no greater legal significance than those of friends or roommates. As we will see, the LGBT rights movement used the Braschi litigation to encourage the courts--and, through them, the public--to take a hard look at a particular loving relationship between two men in order to make its case that LGBT people are as capable of forming close and lasting familial ties as are straight people.

As a result of Nabozny v. Podlesny (1996), a jury in rural Wisconsin concluded that school officials violated the constitutional rights of a gay teenager when they permitted other students to harass him in violent and demeaning ways because of his sexual orientation. Prior to this case, the intense physical and emotional suffering of countless LGBT students in American schools at the hands of homophobic students went largely unacknowledged by school officials and the public at large. It took a federal constitutional lawsuit to render visible the plight of the many LGBT students who have to cope with repeated instances of violence and harassment in the hallways and bathrooms of the country’s public schools.

Because of Romer v. Evans (1996), the U.S. Supreme Court held that it is unconstitutional to deny LGBT people the opportunity to seek antidiscrimination protection under the law. At issue in Romer was a Colorado state constitutional amendment that would have made it illegal to protect sexual minorities against discrimination based on their sexual orientation. Supporters of the amendment hoped to push LGBT people back into the closet, but the Court rejected this effort, making it clear that LGBT people are equals under the law and that the government has an obligation to treat them accordingly.

When the Hawaii Supreme Court ruled in Baehr v. Lewin (1993), it became the first American court to question the constitutionality of denying same-sex couples the opportunity to marry, and, in the process, it ignited the marriage equality movement. The same-sex marriage cases, of which Baehr was the first important one, have done more to increase the visibility of LGBT people than any other strategy pursued by the LGBT rights movement in the last twenty years. The lawsuits have forced the country as a whole to grapple with the question of whether it is legally and morally defensible to deny an entire group of individuals access to the hundreds of rights and benefits that our society allocates through the institution of marriage. As a result of Baehr, and of the same-sex marriage cases that followed, it has become much more difficult for Americans to continue to pretend that LGBT people either do not exist or that their needs and aspirations are not worth considering.

In Lawrence v. Texas (2003), the U.S. Supreme Court held that the government cannot criminalize private and consensual gay sex. For decades prior to Lawrence, those who supported discrimination against LGBT people contended that society was entitled to use the criminal law to express disapproval of same-sex sexuality and relationships. The Court in Lawrence ruled that such a position is inconsistent with our nation’s most cherished principles aimed at protecting individual dignity and autonomy. Rather than relegating same-sex sexuality to the realm of the hidden, shameful, and degrading, the Court made it clear that the choices LGBT people make about sexual intimacy are as closely linked to their dignity as human beings as are those of heterosexuals.

A Note from the Series EditorIntroduction Chapter 1 FamilyChapter 2 HarassmentChapter 3 DiscriminationChapter 4 MarriageChapter 5 SexConclusionWhere Are They Now?AcknowledgmentsNotesIndex